Attorney for Augusta man says claims vague, previously litigated
Story by Lawrence Smith
The West Virginia Record
The lawsuit against an alleged Virginia private investigator should be dismissed because the state residents who’ve filed it against him have either failed to be specific in their claim or the issues have been addressed in other courts, says the man’s attorney.
On Oct. 31, a hearing was held in Monongalia Magistrate Court on Jon Gigliotti’s motion to dismiss the small-claim suit filed against him by a group of West Virginia residents. The residents – Patricia Lemley, Robert Hart, Elizabeth Crawford, Gil Vanderkraats and Sue Holland – allege that despite paying Gigliotti, who lives in Lyndhurst, Va., a “retainer” of $2,650 to conduct an investigation into their respective allegations of corruption in the state judicial system, he never performed any work.
In his motion filed Oct. 9 with the assistance of his attorney RaeLynn Regula, with the Morgantown law firm of Brewer and Giggenbach, maintains that not only does the suit against him lack specifics in what he allegedly failed to do, but that at least two of the co-plaintiffs, Lemley and Hart, have already attempted to litigate the matter in other courts, and have failed. In the latter circumstance, Regula said during the Oct. 31 hearing, is an attempt by the plaintiffs to relitigate the issue.
“What they are attempting to do,” Regula said, “is forum shop.”
In exhibits attached to the motion, Regula referred to lawsuits Lemley and Hart filed separately in 2000 and 2002, respectfully, against Gigliotti in Monongalia Circuit Court. Hart’s case, court records show, was later transferred to the U.S. District Court in Clarksburg.
In both cases, Regula noted that the judges dismissed the cases with prejudice because, like in the pending suit, the plaintiffs failed to state a claim. In fact, Regula said in Lemley’s case, Monongalia Circuit Judge Russell M. Clawges found that Gigliotti “fulfilled his obligation.”
Acknowledging that the pending suit is the first time that Crawford, Vanderkraats and Holland have brought any action against her client, Regula said their claims are, too, without merit.
If they are bringing a claim against Gigliotti for theft or fraud, then the statute of limitations have long expired, Regula argued.
Also, if they are alleging breech of contract, then not only have they failed to state a cause of action on how Gigliotti may have harmed them, but also prove any consideration between them.
“They haven’t stated the elements of the complaints,” Regula said. “The haven’t made any sort of allegation that Mr. Gigliotti did anything wrong.”
Reasons against dismissal
In their reply, Lemley and Hart acknowledged that their respective lawsuits against Gigliotti were dismissed. However, they maintain that certain mitigating factors in those cases should not preclude the pending case against Gigliotti from going forward.
According to court records, in addition to Gigliotti, Lemley filed her suit against Mark Troobnick, John G. Stepanovich, Patricia B. Lyman, James L. Coster and the American Center for Law and Justice, a Virginia Beach-based public-interest law firm. In her suit, Lemley alleged fraud on their behalf when they reneged on agreeing to reopen a case of alleged arson to her beauty salon in the late 1980s.
The case wasn’t dismissed on its merits, but because she had ineffective assistance of counsel who, Lemley said, did nothing in her case other than file it. Lemley’s attorney, Keith Wheaton of Martinsburg, was disbarred by the state Supreme Court in 2004, who found that from 1997 to 2002 he engaged in “a pattern of misconduct.”
Though Lemley never filed an ethics complaint with the state Bar Association against Wheaton, Crawford did in an unrelated case. In fact, Crawford’s complaint was one of six used by the Lawyer Disciplinary Board, the Bar’s prosecutorial arm, to bring the statement of charges against Wheaton.
In his case, court records show Hart filed suit against Gigliotti, Stepanovich, ACLJ and the Christian Broadcasting Network, a religious television network founded by Pat Robertson, and also located in Virginia Beach. Hart alleged in his suit they failed to make good on their promise to investigate the claims they related to Gigliotti in 1997, file a class-action lawsuit on their behalf via the ACLJ and air a segment about the suit via “The 700 Club,” CBN’s flagship program.
Court records show that U.S. District Judge Robert E. Maxwell dismissed the suit against Stepanovich, ACLJ and CBN on Feb.27, 2003 because agreements between they and Hart were an “oral promise” and “did not comport with the statute of frauds and did not constitute a legally enforceable contract.”
Though Gigliotti was later dismissed as defendant four days later, Maxwell left the door open for Hart to pursue legal action against Gigliotti because he found the matter between Hart and Gigliotti lacked jurisdiction in federal court. Likewise, Hart avers that Maxwell, from the bench, suggested Gigliotti refund any money he accepted from Hart.
“He’s not in court today with clean hands,” Hart said during the hearing.
Also, given the fact that Gigliotti filed a counterclaim against the residents on April 9 for $5,000, is another reason why Hart says the case should not be dismissed. He would like the opportunity to conduct discovery to find out how Gigliotti came up with that figure.
Likewise, Crawford said discovery would not only enable them to make their claims on how Gigliotti wronged them, but also prove that she, Lemley, Hart, Vanderkraats and Holland aren’t the only ones with a case against him.
“Mr. Gigliotti has not only caused us financial harm, but also emotional harm,” Crawford said. “We are not his only victims.”
After agreeing to allow the residents to submit additional documentation to substantiate their case, Magistrate Jennifer Wilson said she would be taking the case under advisement, and inform both sides of her decision via U.S. Mail. She said they could expect her ruling sometime after Nov. 15.
Lawrence Smith is a staff writer for The West Virginia Record. This article was reprinted with permission of the Record.